Legitimate expectation now part of law

NAIROBI: Statutes enacted by Parliament are not the only sources of laws in Kenya. Judicial declarations by higher courts become an integral part of laws under what is termed as the doctrine of precedent.

Interestingly, laws of Commonwealth countries have begun to have great influence in Kenya's higher courts and courts accept the doctrines developed in other jurisdictions.

An extremely profound legal concept of 'legitimate expectation' which first surfaced in England in 1969, has now been adopted in our courts and is being applied with great impact.

What then in law is 'legitimate expectation' and how will it influence the lives of Kenyans?

The concept originates from the common law principle of fairness and is aimed at ensuring good administration and prevention of abuse by decision makers.

If the conduct of a public authority creates a legitimate expectation that a certain course is to be followed, it would be unfair if the authority is allowed to follow a different course.

As a legal concept, legitimate expectation establishes that if a public body leads an individual to believe that he or she will have a particular right, over and above that generally required by the principles of fairness and natural justice, then the person is said to have legitimate expectations that they can be protected.

This entitles the individual to a fair hearing and just treatment.

The doctrine of legitimate expectation is a judicial innovation that provides locus standi to a person who though does not have a legal right, but does have an expectation that the concerned authority will behave in a certain way.

Legitimate expectation as legal doctrine functions to avert frustration of the decision and rule making process by Government.

Where an individual manages to satisfy the court that his or her substantive legitimate expectation has been frustrated by the authority, the court compels the authority to fulfill the expectation.

Even in the absence of a substantive right, legitimate expectation can enable an individual to seek judicial review of administrative action.

The expectation should however be legitimate, that is, logical, reasonable and valid emanating from a regular, consistent and predictable process of decision making by public bodies.

Courts in Africa have recently dealt with these new developments.

Legitimate expectation dawned in Kenyan jurisdiction to accommodate the increased call to remedy the excesses and administrative ingenuity by government authorities.

In a 2011 landmark decision pitting Nubian Minors versus Kenya (2011), the African Committee of Experts on the Rights and Welfare of the Child found the Government of Kenya to have violated the African Charter on the Rights and Welfare of the Child (1990) in its treatment of Kenyan children of Nubian descent.

The court highlighted that the Nubian children had been denied their legitimate expectation of Kenyan citizenship.

It found that the Government of Kenyan failed to ensure that Nubian children got the right to Kenyan citizenship at birth, hence creating a myriad of obstacles throughout the development of the children.

Recently, legitimate expectation came into judicial scrutiny in a case pitting the Communications Commission of Kenya (CCK) and five others against Royal Media Services Limited and five others.

In this highly publicised digital migration case, the question posed was whether or not the appellants had breached the respondents' legitimate expectation to be issued with licences for signal distribution.

Deputy Chief Justice Kalpana Rawal observed that the scope of legitimate expectation has been reinforced and was no longer an issue under the purview of Common Law as was its genesis, but a constitutional one.

The DCJ reiterated that issuance of licences by CCK, which has since changed its name to the Communications Authority of Kenya, is an administrative action under Article 47 of the Constitution and derives legitimate expectation for the appellant from Article 34(3) of the Constitution on freedom of the media.

Indian and Singaporean courts have begun to protect legitimate expectation rights not only in matters of procedure but also in substantive law matters.

Singaporean courts have unconditionally accepted the existence of both procedural and substantive legitimate expectations.

Many academics have expressed skepticism as to whether the doctrine can be applied to substantive rights.

The roping of the doctrine into constitutional law by the Deputy Chief Justice has greatly strengthened the meaning, effect and purpose of the remedies available to citizens who allege breach of legitimate expectations.

Hopefully, legitimate expectation will help to decry and censure ultra vires and unconstitutional administrative actions of any nature, ensuring certainty and predictability in the law, which are necessary elements for a free and democratic society.

Legitimate expectation questions and sanctions public bodies to adopt just approaches in the making of decisions affecting the general public, and ensuring that administrative actions are consistent and certain through a test of proportionality.